Ajay Tiwari, J.

1. This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellant for specific performance of an agreement to sell dated 16.1.1980 in respect of the property in dispute for a consideration of Rs.3.50 lacs.

2. It was pleaded that subsequently a novated contract of sale came into existence in which the sale consideration was reduced to Rs.2.90 lacs. It was further pleaded that on 18.3.1980, a draft sale deed was executed and possession of the property in dispute was delivered to the plaintiffs by the defendants. The said draft sale deed along with the affidavit was filed before the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (for short the Act) by the respondents and permission under the Act was granted on 11.8.1980. Similarly, no objection certificate was also obtained by the respondents. However, on the appointed date, the respondents did not turn up despite having been informed by way of a telegraphic notice.

3. In reply, the respondents took a plea that under the agreement to sell, penalty for non-execution of sale deed was specifically mentioned as refund of earnest money an